Gerhard Werle and Aziz Epik discuss the impact of theories of punishment on the sentencing decisions of the ICC. In their view, the question of ‘why punish’ has – and should have – an impact on the ‘how’ of punishment, i.e., on the sentencing process and its outcome. After a careful analysis of the ICC’s sentencing decisions, they come to the conclusion that a consistent approach with regard to the sentencing objectives can be detected, but that judges do not elaborate on how these objectives influence and guide the sentencing decisions. In the following, the authors outline a coherent sentencing model that takes into account theories of punishment and the objectives of sentencing. Because its most important requirement is to ensure proportionality, Werle and Epik discuss the factors that should be taken into account in determining the gravity of the crime and the culpability of the offender. Within the proportionality framework, in order to ensure special deterrence and rehabilitation, the individual circumstances of the offender can also be taken into account.

Harmen van der Wilt explains the ICC’s and the Rome Statute’s ‘design selectivity’, i.e., the ICC’s legal, structural and political limitations and well as its inherent selectivity when selecting ‘situations’ and ‘cases’. He analyzes how the problem of selectivity in international criminal law, i.e., the systematical exemption of entire categories of perpetrators from accountability, creates tensions with traditional theories of punishment. In emphasizing the shift from punishment to trial, he argues that international criminal law’s inherent selectivity can best be processed by expressivism. However, contemporary international criminal law, he concludes, conveys the ‘perverse message’ that ‘criminal responsibility depends on the party or nation one belongs to and the side on which one fights’. For the future, he calls for an approach of ‘dauntless perseverance’.